My colleague and friend Jonathan Askin has a great op-ed in TechCrunch, comparing the Google-Verizon deal on network neutrality to Star Wars. This is doubly fun for us geeks!
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Filed under: Digital Media, First Amendment, Intermediaries, Internet & Society, Law School, Media, Network Neutrality, Open Access, Scholarship
It’s easy to understand why the Digital Millennium Copyright Act caused an uproar when it was enacted twelve years ago. Nominally in the name of deterring piracy, Congress acted directly to regulate the creation, use, and distribution of the sorts of tools that potentially could be used to infringe copyright. As written, however, the statute seemed not to require proof that anyone’s copyright actually had been infringed in order to make out a DMCA violation. This was widely seen as a major shift in the balance of power between content owners on the one hand, and computer users and technology companies on the other: for the first time, content owners could bring suit to stop dissemination of a technology that could be put to both infringing and non-infringing uses, and the famous Sony doctrine no longer operated to shield technology providers from liability.
Dire predictions followed about how the DMCA would restrict fair use, distort competition, erode privacy, and jeopardize academic research. In the early years of the statute’s existence, these predictions appeared to be fully justified: the DMCA was invoked to attack a DVD player for the Linux operating system; to imprison a Russian programmer transiently present in the United States based on conduct that was lawful in Russia where it occurred, and to harass and threaten an American computer scientist in an attempt to deter him from publishing his academic research, among other things. Cases like these appeared to substantiate the view that the DMCA had fundamentally upset the historical balance between the rights of owners and the rights of users of copyrighted works.
I can’t help noticing, however, that since the high-water mark of 2001 or thereabouts, the progression of developments under the DMCA has almost uniformly been in the direction of recognizing greater rights for users and fewer rights for copyright owners. Read more…
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Filed under: Copyright, Court Decisions, Digital Media, Internet & Society, Uncategorized
The Summer issue of the Harvard Journal on Legislation, now available in print and online, includes my article “Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public,” which I previously blogged about here.
The article highlights a problem in copyright law (previously discussed by Lydia Loren and Anthony Reese, both from perspectives that differ from mine in a number of particulars) that may affect “open-content” projects such as the Linux operating system and the Wikipedia encyclopedia. Those and other projects have grown rapidly by aggregating contributions from many individual users. As a condition of participating in the project, the users agree to license their contributions under standard-form licenses that permit future contributors to build on prior contributors’ work without fear of liability for copyright infringement. (The GNU General Public License is one of the best known, widest used, and most frequently discussed such licenses, but there are hundreds of alternatives used by different projects).
The intent of such licenses (frequently, although not always, stated expressly in their text) is to allow other users to share and reuse the licensed content forever. In the United States, however, copyright law makes the permanent grant of license to reuse a work impossible. There are provisions in the statute (most notably section 203(a), which governs all transfers and licenses executed since 1978) that permit the creators of copyrighted works to rescind any licenses they previously granted. Those statutory provisions come with some important qualifiers and caveats (most importantly, they operate only on a fairly long time horizon), but they are there, and the statute prevents parties from contracting around the termination rules.
My new paper investigates what the copyright statute’s termination provisions may mean for open-content projects (as well as for the analytically similar, although surely far less common, scenario in which an author expressly disclaims or abandons copyright). After looking at a few ways in a which a court inclined to do so might manage to salvage an open-content license from a contributor’s attempt at termination, I propose new legislation aimed at solving the problem before it arises.
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Filed under: Copyright, Peer Production, Scholarship
I’ve noted before how often the battle over network neutrality gets cast as a fight between service providers and content providers — between the owners of the pipes and the owners of the stuff that flows through them. The large-scale consumer activism on the issue, which has aligned with the content owners in favor of an open internet that treats all traffic equally, sometimes gets overlooked in the clash between powerful titans of the online industry.
To me that’s the biggest reason yesterday’s “compromise” proposal on the subject between Verizon and Google is alarming. A handshake involving one of the largest pipe owners and the most important web content company will be seen by many inside the Beltway as the equivalent of Camp David. I can hear the line of reasoning now: Historic enemies have reached agreement — surely their joint policy “framework” must be fair, as it has emerged from this hard-headed negotiation of adversaries!
Not so fast. As Tim Wu suggested last week before the companies unveiled their deal, Google has strategic business reasons to change its positioning on network neutrality. Looking at the deal itself, rather than just the characters behind it, raises many substantive concerns.
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Filed under: ISP, Intermediaries, Network Neutrality
Here’s today’s entry in the IP Overreaching Hall of Shame. According to the New York Post:
Reps for the Beach Boys are threatening to sue Katy Perry after she included their classic line “I wish they all could be California Girls,” in her song “California Gurls.” Rondor Music has fired off a letter to Perry’s label, Capitol Records, demanding Mike Love and Brian Wilson — who penned the 1965 classic “California Girls” — be given a writing credit on Perry’s hit summer song, as well as royalties.
If you have somehow avoided hearing Perry’s ubiquitous hit this summer, which gives new meaning to the phrase “cotton candy pop song,” you can watch the video here (warning: Auto-Tune ahead). The supposed claim is based entirely on Snoop Dogg’s rapped coda to the song, similar (but not identical) to the iconic Beach Boys refrain. (Snoop actually says, “I really wish you all could be California girls.”)
Later reports today, such as this Daily News piece, clarify that Rondor has not exactly threatened suit — though it appears the label still hopes to pressure Perry’s record company into giving them a cut of the royalties. More outrageously, Rondor’s clarifying statement still seeks to hold the moral and legal high ground:
Using the words or melody in a new song taken from an original work is not appropriate under any circumstances, particularly one as well-known and iconic as ‘California Girls.’ Rondor Music…is committed to protecting the rights of its artists and songwriters, and with the support of the writers, that is exactly what we are doing.
What a nerve! This is so obviously a de minimis use, and a fair use, that any legal claim is groundless. The quotation of one line is not infringement. And this bald-faced statement condemning any such use “in any circumstances” earns extra Hall of Shame opprobrium. (If it really were unlawful to refer briefly to iconic lines from past hits in this way, what would have happened to jazz musicians’ many winking tributes to classics like “How High the Moon” — or to just about the entirety of the blues?)
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Filed under: Copyright, Music
I’ve written an essay called “The Enigma of Internet Freedom” that appears in this month’s eJournal USA, which is published by the U.S. State Department. Here’s the introduction:
Rhetorically, everyone supports Internet freedom. “Freedom,” though, means quite different things, and carries diverse weights when measured against other interests in various countries and cultures. This normative divergence plays out in debates over access, threats to freedom, online content controls, and governance. In short, the concept of “Internet freedom” holds within it a set of conflicts about how the ‘Net should function. Acknowledging openly these tensions is better than clinging to wording that masks inevitable, hard choices.
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Filed under: Filtering, First Amendment, ISP, Intermediaries, Internet & Society, Privacy, international
My colleague and friend Jayne Ressler has a terrific op-ed in the L.A. Daily News about the need to reform civil contempt confinement. The problem with unlimited imprisonment is obvious. What also concerns me is the lack of review in the case she cites: Richard Fine alleged that L.A. County was bribing judges in exchange for favorable rulings. The county judges fined him $47,000 and, when he refused to pay, threw him in jail. I don’t know what the merits are of Fine’s charges, but I do know there’s a blatant conflict of interest here. When the power to sanction one’s accuser is backed by the force of unlimited jail time – well, that’s worrisome.
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Filed under: Court Decisions, First Amendment, Law School, Media, civil procedure
When I went to law school, one of my more disagreeable professors gave us a memorable definition of the task of courts in statutory interpretation cases: “A judge’s job is to figure out who Congress was trying to screw, and then screw them.” Even if you accept that formulation (and it seems to rest on a pretty simplistic view of judging), what it leaves unstated is an even more compelling imperative for the courts: to make sure that people Congress wasn’t trying to screw don’t end up getting screwed anyway through the inadvertence, inattention, or perversity of the courts.
There was a good deal of talk on the cyberprofs listserv this past weekend concerning the Fifth Circuit’s new DMCA anticircumvention opinion, MGE UPS Systems Inc. v. GE Consumer and Industrial Inc.. At one level, MGE is all about making sure that people Congress didn’t mean to snare within the statute’s prohibition on circumventing DRM technologies don’t find themselves on the losing end of a DMCA claim. The problem, as many others have observed and as I have argued (at probably undue length) elsewhere, is that the statute is simply a mess: its liability provisions invoke concepts that have no settled meaning in the law, its definitional provisions confound rather than clarify, and the policies underlying the DMCA (regulating access to works) simply do not fit with hundreds of years of copyright (regulating uses of works). The statute’s basic incoherence and incompatibility with prior copyright law makes it pretty difficult for a court to know whether it is applying the statute in a way that Congress intended or not. Read more…
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Filed under: Copyright, Court Decisions
An impressive fake video is making the rounds of the Internet; it purportedly shows a French government official announcing that the Republic would repay the enormous sum Haiti sent to France in exchange for independence in 1803. The video is hosted at http://www.diplomatiegov.fr/, a domain name very similar to the French Foreign Ministry site, which is at http://www.diplomatie.gouv.fr/en/. This is a fascinating example of using Web 2.0 technologies, and frankly a bit of trickery, to get people to think hard about old grievances and Haiti’s current crisis. Fun question: how would a domain name dispute under the UDRP turn out here? What if American law under the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. 1125(d)) were to apply? This isn’t entirely hypothetical – the French Foreign Ministry is considering legal action. Unwise, as the Barbra Streisand effect likely applies here: better to let sleeping hoaxes lie…
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Filed under: Digital Media, First Amendment, Intermediaries, Internet & Society, Media, Video, international
The New York Times has a fascinating article about the effects of screening Web sites and images for objectionable content on the workers who perform the screening. This is a valuable function – it helps sites such as Flickr keep problematic images off their services – and it is an important alternative to legal regulation of on-line content. I admit I hadn’t thought about how the screeners would be affected by their work. The Internet Watch Foundation, which looks for child abuse / child pornography images on-line, uses specially-trained staff, partly for this reason. Being exposed to some of this material exacts a cost, and the question is who will pay it: screeners for third-party companies, Internet firm employees, or Web users who encounter the content.
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Filed under: Filtering, ISP, Intermediaries, Internet & Society, Media
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